Court assumes collaboration represents the public interest

On June 14, the Idaho federal district court refused to grant a temporary restraining order against a timber sale on the Payette National Forest.  The court’s review of the merits of the case was cursory, and instead it focused on the standard for granting an injunction.  A key question is whether the injunction would be in the public interest.

The Payette Forest Coalition had participated in developing the project, and had intervened in the case on the side of the Forest Service.  In determining the public interest, the court noted that, “the Project was developed in a collaboration between the USFS and a diverse group of stakeholders, including the Intervening Defendants.”  The court also stated that, “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and finally, “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”  The court denied the TRO (citing a number of other factors in the public interest as well).

There is no evidence that the plaintiff environmental groups challenged the assumption that this collaboration was in the public interest, which, based on many discussions on this blog, should probably be considered a debatable point.

9 Comments

  1. Interesting. Apparently when a collaborator can’t have it her way, she leaves the table and sues. So much for good-faith discussion and finding common ground. Who was the plaintiff, besides being an environmental group? And Hooray! for the Idaho federal district court.

  2. Is “Collaboration” in the public interest?
    A debatable point indeed, albeit necessitating an extra measure of forensic scrutiny.

    Justice is uniquely blind in this decision as jurisprudence and investigative journalism alike, require following the age old investigatory discipline known as, “follow the money.”

    As 501 c.3 “environmental” nonprofits (“ENGOs”) are reliant upon multi-millionaires and multi-billionaires (aka, the richest “one percenters”) and their tax havens known as “charitable” foundations; and such foundation portfolios invest in environmentally-destructive industries; and the singular fiduciary obligation of foundation trustees is to protect and grow the foundation corpus by profiteering from business as usual (BAU) — then it should come as no surprise why hundreds of millions of dollars annually, are thrown at environmental problems that only worsen over time.

    So as foundation funding gets severely limited to “donor-advised” funding, there will always be well-meaning ENGOs forced to reach for the low-hanging fruit of restricted grants (thus, becoming small “e” “eNGOs”). Keeping staff in the next grant cycle and bottom-line thinking (big budget= big progress) requires a willingness to adopt trustees’ “market based solutions” formulated by professional corporate PR tacticians hired by foundations to protect BAU..

    The irony of the terms, “collaboration ” and “compromise” is that each have antithetical definitions. The former, “traitorous cooperation with the enemy” and the latter, “to weaken, by accepting standards which are undesirable.”

    The current familiar examples, (“stewardship and restoration”) are standard perception management techniques employing corporate marketing tactics which rebrand and greenwash expressly for the purposes of maintenance of BAU.

    Never before has such a vast disparity of wealth in America occurred since that which preceded the Great Depression. The disparity can be now understood as a massive transfer of environmental health and wealth of the commons and the commoners — the now disappearing middle class and the burgeoning masses of the homeless and poverty-stricken. All that is really necessary here is to convince the desperate masses we’re doing our absolute best to address the perfect storm of environmental crises.

    There will always be willing eNGOs justifying their revenue streams by abandoning the bedrock principles they claim to stand for. The fact is, their principles are no longer founded upon bedrock but rather, quicksand.

    This is certainly not in the “public interest,” and in fact, is an abject breach of the public trust.

    • It would seem that a large part of the problem you identify is the disparity in wealth. The last 25 years has seen an exponential growth in this disparity, which coincides with the growth of the “environmental movement” and not so coincidentally the decay in forest health. The severe swing of the pendulum from almost completely managed forests to “preserved” forests follows the same timeline. Tens of thousands of middle class lost their means of support when the environmental movement managed to literally stop management over night, to save a specie that had been declared endangered, at the time based on very weak information.
      The perfect storm was already in place, the peace & love generation of the 60’s were in positions of power, there were great examples of corporate ignorance – as rivers burned, AND there was a disparity of wealth growing in the the generation of peace & love. Unfortunately, the solution was to try to lock up and preserve everything including the forests, with again, little understanding of the facts. The forests are not a stagnant ecosystem that will suddenly freeze in its current condition. It is a dynamic, ever changing, but finitely limited ecosystem.
      The lack of management & utilization of excess growth for the last 25 years has lead to a catastrophic situation we now have on our hands. We have destroyed middle class jobs, we have created a larger disparity in wealth, and most importantly, we are destroying the forests by default. Yet, as long as the money keeps flowing into ENGOs and eNGOs, so that the discreet administrators of these groups profit just as the 1% that they guide everyone to blame, it will continue.
      The results of the last 25 years are in full view. The death and decay of an entire ecosystem and numerous species from unnatural excess biomass. The destruction of property and life due to wildfire (again mostly middle class). The giant annual releases of carbon from these fires and the long term continued release thru decay of mortality from biomass that has never been recorded at this level even before civilization adding to Climate Change. Which is now cause for a continuation of this deceit.
      And yet the movement goes on under the guise of doing good! Who is really getting fooled?

  3. Hi Jon. You said:
    “There is no evidence that the plaintiff environmental groups challenged the assumption that this collaboration was in the public interest, which, based on many discussions on this blog, should probably be considered a debatable point.”

    I guess I’m not understanding this part of your post. Are you asking why the Court focused on the public interest part, rather that going to the merits?

    If so, it’s b/c a TRO is an equitable remedy (fairness) as opposed to a damages remedy ($$$). Courts are extremely hesitant to impose the equitable remedy of specific performance (forcing someone to do something, or refrain from doing something) due to issues of involuntary servitude and difficulty of policing their ruling. Thus, when they rule in equity they are afforded wide discretion, and in exercising that discretion one of many factors the court looks to is whether requiring a party to specifically perform is in the public interest.

    In many USFS cases where the plaintiff is seeking a TRO, the Courts have granted them because it is in the public interest to protect the public resource from irrational government action, and the plaintiff is generally required to make a reasonable showing that it will succeed on the merits. Here, however, it seems the Court bought the intervenor’s argument that that the project was not solely the brain child of the USFS, but was “collaboratively” designed with the public. Thus, how could it be against the public interest?

    Definitely a heads up argument by the intervenors, and I’m sure it will be opposed with more detail by plaintiff groups in the future. The kicker will be if other courts come to the same conclusion in the future. If so, as Mac and Steve comment, it could have definite repercussions in regard to stopping the USFS from moving forward on projects while plaintiff’s complaints are being litigated.

    One last thought … A TRO is IMMEDIATELY appealable through an interlocutory injunction. Did the plaintiff’s seek one? If so, it will be interesting to see what the 9th Cir. says.

  4. To an impartial judge, why wouldn’t they assume that a project developed collaboratively isn’t in the public interest? Unless there is evidence that a particular interest or perspective was not provided an opportunity to participate, or deliberatively excluded from the process, I can see how a conclusion of “in the public interest” was reached. As I heard many times while working in a collaborative process throughout Utah in the 2000s, “the world is run by those who show up.” This statement will be sorely put to the test this November.

  5. My point was that the question of whether this particular collaboration was in the public interest was probably not briefed by the plaintiffs (or maybe the defendants). In the future we may see the whole debate on collaboration move to the courtroom (with its questions about who participates and whether that is somehow representative of the public/national interest).

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